Longden v Kenalda Nominees Pty Ltd - [2003] VSCA 128

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.6504 of 2001

MARGARET LONGDEN
	Appellant
v.
KENALDA NOMINEES PTY. LTD.	Respondent

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JUDGES:	PHILLIPS, BUCHANAN and CHERNOV JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 and 11 April 2003
DATE OF JUDGMENT:	4 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 128

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Damages – Contract – Assessment of damages for breach of contract – Deprivation of commercial opportunity to conduct business – Whether value established – Failure of plaintiff to establish damage – No acceptable evidence of loss.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. P.J. Riordan	Riordan & Partners
For the Respondent	Mr. S.W. Kaye QC with Mr. M.J. Stirling	Richmond & Bennison

PHILLIPS, J.A.:

This is a case in contract[1]. The contract was for the lease by the plaintiff from the defendant of the premises in question and the parties were aware of the proposed lessee’s purpose to set up and run a retail furniture business on those premises. The contract was broken by the defendant. The premises were never made available by the defendant to the plaintiff and the lease never commenced.
[1]Questions sometimes arise whether there are differences when the claim is in tort: see, for example, Professor Brian Coote, Chance and the Burden of Proof in Contract and Tort (1988) 62 A.L.J. 761. In this instance, I simply note that in Sellars v. Adelaide Petroleum NL (1994) 179 C.L.R. 332, when dealing with the assessment of damages, the Court saw no need to distinguish between cases in contract, in tort, or under s.52 of the Trade Practices Act.

As proposed lessee, the plaintiff was entitled to damages for any loss suffered in consequence of the breach of contract by the defendant. Without question, the cause of action was established. That loss followed must also be established by the plaintiff, and on the balance of probabilities. The critical question, as I see it, is whether the plaintiff established at trial that it did suffer loss, given that loss depended in the circumstances upon the value to the plaintiff of conducting a business that was never commenced.

According to the plaintiff’s submissions, the loss is necessarily dependant upon hypotheses, both as to past by the time of trial (as from the time when the lease was due to commence) and as to the future (for the balance of the term of the lease, beyond the date of trial). Accordingly, says the plaintiff, the Court may take account of what is less than a probability and have regard to mere possibilities, provided only that such are “real” or “significant” or “not too speculative” or “not merely minimal”. It is enough that there was a real possibility that the business might make a profit; for accordingly something of value has been lost and substantial damages are payable. So the argument ran.

One answer is that given by Buchanan, J.A. Let it be supposed that the business might have made a profit. Given that the judge properly (in my opinion) rejected…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] VSCA 128
Decision Date: 4 September 2003

CaseChat Overview and Summary

Longden v Kenalda Nominees Pty Ltd was a case heard by the Supreme Court of Victoria where the plaintiff, Longden, sought damages for breach of contract against the defendant, Kenalda Nominees Pty Ltd. The dispute arose from a failed business opportunity where Longden claimed that Kenalda's breach of contract deprived him of a commercial opportunity to conduct business. Longden argued that the breach resulted in the loss of a significant commercial opportunity, for which he sought damages.

The primary legal issue before the court was whether Longden had established a quantifiable loss as a result of the breach. The court needed to determine if Longden could prove the existence and extent of the loss with acceptable evidence. The court also had to consider whether Longden's claim for damages was reasonable and supported by evidence.

The court found that Longden had not provided sufficient evidence to establish the value of the lost commercial opportunity. The plaintiff's claims were speculative and lacked concrete evidence to support the alleged loss. As a result, the court concluded that Longden had not successfully demonstrated a quantifiable loss attributable to the defendant's breach of contract. Therefore, the claim for damages was dismissed. The court held that without acceptable evidence of loss, Longden's claim for damages could not be substantiated. The final order was that Longden's claim for damages was dismissed, and no damages were awarded to Longden.

Orders